U.S. Justices to Weigh Search Warrant Power Outside Domestic Borders

U.S. Justices to Weigh Search Warrant Power Outside Domestic Borders
Rhett Pardon

WASHINGTON — In a high-stakes battle over digital privacy, the U.S. Supreme Court agreed yesterday to hear a case concerning the reach of warrants issued for electronic communications stored abroad.

The case could have a significant impact on privacy rights for the adult entertainment industry, according to industry attorney Lawrence Walters of Walters Law Group.

In the case, justices will decide whether an email service provider must surrender email communications held in foreign countries for which a warrant was issued.

The federal government, which urged the justices to take the case, said U.S.-based service providers should comply with orders issued by American courts, even in cases where the relevant material is held abroad.

Walters told XBIZ that the case, titled In the Matter of a Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft Corp., involves another attempt by the courts to apply old law to new technology. 

“The law at issue is the Stored Communications Act (SCA), which protects the privacy of both user data and the content of user communications,” Walters said. “When the government wants user data, it need only issue a subpoena. When faced with a subpoena, a company is ordinarily obligated to turn over all information the company controls, regardless of where that information might be located.

“However, when the government seeks the content of stored communications, it must obtain a warrant, issued by a judge,” he said. “That brings in a whole different body of case law, which focuses on the physical location of the property sought by the warrant.”

This case got its wheels in December 2013 when federal investigators obtained a warrant for emails held at Microsoft’s datacenter in Dublin, Ireland, under the Stored Communications Act (SCA).

Microsoft refused to comply with the order. Later, on appeal, the 2nd U.S. Circuit Court of Appeals sided with Microsoft, prompting the Justice Department to seek high court review.  

“The 2nd Circuit said that the SCA cannot be applied extraterritorially, so Microsoft did not have to turn over information stored in Ireland,” Walters said. “The decision has been criticized by some as failing to grasp the unique nature of cloud-stored data, which is often fragmented and not in a stable ‘location.’”

Walters emphasized that the case, if reversed, could chip away at privacy rights, particularly for the adult biz.

“Some adult cam networks, hosts and social networking sites store data overseas, thus putting the content of their users’ communications potentially out of reach of U.S. law enforcement, if the decision is upheld,” he said. “However, if the decision is reversed, the location of data stored in the cloud could become irrelevant, thus subjecting the content of communications to government review, if supported by a proper warrant.

“Given the significant impediment to law enforcement that would result if the case is affirmed, I suspect the SCA would be amended to make clear that it is intended to apply extraterritorially.”

Industry attorney Marc Randazza of Randazza Legal Group told XBIZ if the Supreme Court reverses the 2nd Circuit's finding as to the application of the SCA, "it would only mean a return to the former status quo, rather than a significant change in the law as the adult entertainment industry knew it."  

"Given the current legislative and enforcement climate, however, especially with attempts to weaken the protections of the Communications Decency Act, a reversal of the decision could make life more difficult for members of the adult entertainment industry," Randazza said.

Justices will hear arguments next year and later decide the case.

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